(I’m currently engaged (if he ever responds again) in a debate with a gentleman from Ireland who currently lives in England. The debate is going on over at The Commentary, a blog that he runs that I don’t have administrator priviledges at. This is a slightly reworked post from over there that I wanted to repost here because, damnit, I’m proud of it. It was a lot of work. Bear in mind when you read this that I’m explaining this as though the reader has no first-hand knowledge of the American system of government.)
The United States was established with the ideal that it would be a government of the Rule of Law. As Benjamin Franklin put it upon being asked what form of government the recently concluded Constitutional Convention had wrought, “A Republic, if you can keep it.” You have to remember at all times, government is made of and run by humans. Henry Louis Mencken wrote:
“The government consists of a gang of men exactly like you and me. They have, taking one with another, no special talent for the business of government; they have only a talent for getting and holding office. Their principal device to that end is to search out groups who pant and pine for something they can’t get and to promise to give it to them. Nine times out of ten that promise is worth nothing. The tenth time is made good by looting A to satisfy B. In other words, government is a broker in pillage, and every election is sort of an advance auction sale of stolen goods.”
That is a VERY American attitude. People call America a democracy all the time. Even our government officials do, but it was never supposed to be a democracy. It’s supposed to be a representative republic, and those representatives were to be chosen from a small and self-selecting pool. The system of elections wasn’t intended to be a “one man, one vote” democracy, but a meritocracy where the people making and enforcing the rules had a talent for government. And it worked very, very well for a while. Honestly, the system as it was established has worked well for over 200 years, being that it was constructed in the full knowledge that power both corrupts and attracts the corrupt. Unfortunately, the accumulated crap produced by those whom Mencken described (and he wrote that probably in the early 1930’s) is apparently catching up with us. This is nowhere more apparent (if you study this stuff) than in the battle for the right to arms. It has become a litmus test for freedom.
Let me explain. (And pardon me – this is going to take a while, but it directly addresses your question and is the heart of the whole right-to-arms thing.)
You ask: “…let’s say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?”
That’s the question, all right.
Here’s how the whole Rule of Law thing is supposed to work in our Representative Republic. There’s a set of rules on how the government itself is supposed to be established – division of powers, rules for electing officials, appointing officials, so on and so forth. There’s a list of things that the government is prohibited from screwing with, i.e., the Bill of Rights. There’s a set of rules laid out in the Constitution for modifying the Constitution as times and conditions change. That modification process is made intentionally difficult, because the need must be great and there must be consensus that the change is necessary. No modifying the foundation of our government on a whim. No 50% +1 vote is sufficient to, say, expel all left-handed redheads from the nation. (Note that this hasn’t stopped us from making some bonehead changes, such as Prohibition and the popular election of Senators.)
On legal questions relating to the Constitution and the Bill of Rights, the various courts are supposed to defer to the intentions of the Founders. Thomas Jefferson put it this way in 1823:
“On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
When it comes to the Second Amendment there is no evidence that anything other than an individual right to arms was intended, and abundant evidence that an individual right is what was intended. Court cases dating up to the Civil War and beyond make that apparent. The most illuminative of these cases is also one of the most reviled. It is Scott v. Sanford, better known as “Dred Scott,” and it occurred just prior to the Civil War. In fact, it has been called “the match that ignited the Civil War.” If you’re interested, go look it up. The central theme of the case was whether a slave, having been taken by his owner to a “free” state was, in fact, free. The Supreme Court in the 7-2 opinion written by Chief Justice Taney not only said “no,” it said that “free” blacks were not and could not be citizens, because:
(Citizenship) “would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.” (My emphasis)
FIFTY-EIGHT YEARS after the ratification of the Constitution and the Bill of Rights, the highest court in the land acknowledged that the right to keep and bear arms was an individual one, and no mention of the militia, well-regulated or otherwise was made. And the court found it necessary to deny all of the rights guaranteed to citizens to free blacks – why? To ensure public safety.
Further, shortly after the war (which was fought in no small part to determine just who “the People” were and was hell on the “public safety”) the highest court in the land once again stepped on its penis, allowing the denial of the right to arms to the newly established citizens who had been made such by the 13th Amendment, and who were guaranteed equal protection under the law by the 14th Amendment. In U.S. v Cruikshank the Supreme Court declared not that the Second Amendment protected militias, but:
“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes…”(My emphasis)
In other words, the Bill of Rights didn’t protect the rights of individuals against infringement – it protects them against infringement by Congress. The STATES were free to do as they damned well pleased. You had to depend on your fellow citizens for the protection of your rights there.
This was blatantly in opposition to the intent of the 14th Amendment, but because government is made of men, it still flew. And gun control in this country began to take root, fertilized with the manure of racism. State laws prohibiting blacks from possessing firearms were reinstated, and not one was struck down on Second Amendment grounds. The Supreme Court had ruled!
Since that time every other “right of the People” has had a Supreme Court or Appeals Court ruling that has “incorporated” it against infringement by the States – including the 3rd Amendment protection against the housing of troops in peacetime! Only the Second Amendment right of “bearing arms for a lawful purpose”, “keep(ing) and carry(ing) arms wherever” we may go has not. And so we have a bewildering patchwork of gun control laws that varies from state to state, and county to county, and county to city, all over the country. Guns are licensed here, they aren’t licensed there. You have to get government permission to buy a handgun in some states, but not in others. You aren’t allowed to possess a handgun in some cities, but in Vermont there are no laws against carrying concealed at all. No permit required. Not even in Montpelier, the capital.
The Second Amendment was last addressed by the Supreme Court in 1939, after Congress passed the 1934 National Firearms Act – an act that many people believe did infringe on the right to arms. The NFA was passed in response to the general violence and lawlessness caused by that cranial flatulence, Prohibition. The lower federal court judge in the case certainly believed it did, as he dismissed the case against Jack Miller and Frank Layton on those grounds. In fact, what he said was:
“The National Firearms Act is not a revenue measure, but an attempt to usurp police power reserved to the states, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution – “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
The case was appealed directly to the Supreme Court – do not pass through the Appeals Court, go directly to jail. The decision in U.S. v Miller is a beautiful example of the judicial system dodging a bullet, so to speak. Miller and Layton were moonshiners (manufacturers of an untaxed alcoholic beverage) who were arrested by two Treasury agents for the possession and interstate transport of a “shotgun having a barrel of less than eighteen inches” which, under the 1934 National Firearms Act, was illegal unless they had a form with a stamp attached that proved they’d payed the required tax. That law said that if you had a shotgun and wanted to take it across state lines, the barrel had to be longer than 18″ or you had to pay the tax. Of course, that “tax” also required you to file an application in duplicate, be fingerprinted and photographed, undergo a background check, and get the permission of the local head of law enforcement. Oh, and the tax was a mere $200. For a $10 shotgun. The same rules held for rifles having a barrel shorter than 16″, and for fully-automatic weapons. And the law established a registry of all weapons so taxed.
Now I ask you: was this or was this not what the lower court judge said it was?
(This law is the one that most people think of when they claim that “machine guns are banned” by the federal government, but they aren’t banned. Just registered and taxed and heavily restricted. There are states that ban them, but Arizona is not one of them. I know several people who legally own fully-automatic weapons.)
When the case appeared before the Supreme Court, Mr. Miller was nowhere to be found. Apparently he died in the interim, but Mr. Layton was still alive. Either way, neither Mr. Miller nor Mr. Layton was represented by anybody before the Supreme Court. No briefs were filed on their behalf, no evidence was presented to support their case. The prosecution claimed before the Court that Miller and Layton’s claim that their Second Amendment rights were voilated was null because neither one of them was a member of a militia. That’s the argument you’ve been making. The Court considered this, but it didn’t decide the case on those grounds. It could have done so easily. They discussed the militia question in fervent detail, but never came to a conclusion on it. Instead, the Court decided that Miller and Layton’s claim was invalid because:
“In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
Which raises the interesting question, “what if they had some evidence?” And the more interesting question, “What if Miller and Layton had possessed a Browning Automatic Rifle instead?” The BAR was standard military equipment for the time, and was also available to the general public since its introduction in 1917.
So, once again, the Supreme Court made a bad decision – in the name of “public safety.”
But what’s worse is that the lower courts have since interpreted U.S. v Miller to say that there is no individual right to arms outside militia service, and that’s a conclusion that cannot be drawn from an honest reading of the case. Since 1939 we’ve been fighting an uphill battle, and there have been no other cases brought before the Supreme Court. They’ve dodged every one.
With the door now opened, gun control forces such as the ones that have stripped England of the right to arms expanded the laws to affect not just “those people,” but everybody. The good-old-boys who used gun control laws to keep the blacks unarmed now saw those same laws used against themselves. Horrors! And the courts offered no respite. The courts were responsible for this.
But in the last two decades our side has been fighting back, and with growing success. First, we got the legal scholars to actually look at the law. Then they started writing. And getting ostracized by their liberal coworkers, but that didn’t stop them. I could quote a number of them, but I’ll quote just one – Laurence Tribe. Yale Law School professor, author of the ConLaw text American Constitutional Law and one of Al Gore’s lawyers in the last Presidential Election. In the first edition of his textbook, he didn’t even mention the Second Amendment, but in the most recent one he has:
“Perhaps the most accurate conclusion one can reach with any confidence is that the core meaning of the Second Amendment is a populist / republican / federalism one: Its central object is to arm ‘We the People’ so that ordinary citizens can paricipate in the collective defense of their community and their state. But it does so not through directly protecting a right on the part of states or other collectivities, assertable by them against the federal government, to arm the populace as they see fit. Rather the amendment achieves its central purpose by assuring that the federal government may not disarm individual citizens without some unusually strong justification consistent with the authority of the states to organize their own militias. That assurance in turn is provided through recognizing a right (admittedly of uncertain scope) on the part of individuals to possess and use firearms in the defense of themselves and their homes — not a right to hunt for game, quite clearly, and certainly not a right to employ firearms to commit aggressive acts against other persons — a right that directly limits action by Congress or by the Executive Branch and may well, in addition, be among the privileges or immunities of United States citizens protected by §1 of the Fourteenth Amendment against state or local government action.”
He was villified by other liberals for writing that.
Then there was the recent Fifth Circuit Court of Appeals decision in US v Emerson which did (for the first time since 1939) an “original intent” review of the Second Amendment, (including a thorough review of US v Miller) and which concluded that the right to arms was an individual right. HOWEVER (and I’m finally getting back to the “nukes in the garage / RPGs in the basement” argument):
“Although, as we have held, the Second Amendment does protect individual rights, that does not mean that those rights may never be made subject to any limited, narrowly tailored specific exceptions or restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.”
Halleluja! The right is individual, but not unlimited! The difference is, whatever restrictions (at this time) the FEDERAL government wants to place on the right must be “narrowly tailored specific exceptions or restrictions” and (elsewhere in the decision) due process must be followed in order to deny an individual his rights. In the case of Timothy Emerson, he received due process and the restriction met the “narrowly tailored” requirement test of that court – “albeit likely minimally so”.
Now, you would think, we would be able to discuss just what laws were and were not “narrowly tailored” and specific enough to meet the test, but not so! The NINTH Circuit Court of Appeals handed down a decision even more recently that bitch-slapped the Fifth Circuit’s decision, although several of the justices disagreed with the majority most eloquently. The Fifth Circuit is based in New Orleans. The Ninth Circuit is based in California. In San Francisco, to be exact. It’s the most liberal of all the courts, and the most overturned by the Supreme Court. But there are some justices out of the 25 who still can think, and I’m going to end this post with the words of one of them.
The case is Silviera v Lockyer, and it has to do with California’s version of the “assault weapons ban.” The Ninth Circuit rejected the claim on the basis that there is no individual right to arms, holding as precedent an earlier case where the Ninth Circuit concluded that this was what US v Miller meant. The case was then appealed to the Ninth Circuit en banc, so that instead of only a three-judge panel, all 25 would hear it. That appeal was rejected on the same grounds. There were FOUR (4) dissenting opinions. This one was, by far, the best:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or . . . the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon – a sawed-off shotgun – was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller’s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision.
The majority falls prey to the delusion – popular in some circles – that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth – born of experience – is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. See Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (finding black citizenship unthinkable because it would give blacks the right to “keep and carry arms wherever they went”). A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
All too many of the other great tragedies of history – Stalin’s atrocities, the killing fields of Cambodia, the Holocaust, to name but a few – were perpetrated by armed troops against unarmed populations. Many could well have been avoided or mitigated, had the perpetrators known their intended victims were equipped with a rifle and twenty bullets apiece, as the Militia Act required here. If a few hundred Jewish fighters in the Warsaw Ghetto could hold off the Wehrmacht for almost a month with only a handful of weapons, six million Jews armed with rifles could not so easily have been herded into cattle cars.
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed – where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Fortunately, the Framers were wise enough to entrench the right of the people to keep and bear arms within our constitutional structure. The purpose and importance of that right was still fresh in their minds, and they spelled it out clearly so it would not be forgotten. Despite the panel’s mighty struggle to erase these words, they remain, and the people themselves can read what they say plainly enough:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The sheer ponderousness of the panel’s opinion – the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text – refutes its thesis far more convincingly than anything I might say. The panel’s labored effort to smother the Second Amendment by sheer body weight has all the grace of a sumo wrestler trying to kill a rattlesnake by sitting on it – and is just as likely to succeed. (All emphasis in original, most legal references removed for clarity.)
So, in answer to your question “…let’s say a liberal government came to power and wanted to ban gun ownership. It would not be able to, because of the Second Amendment, right?”, let’s just say the jury is still out on that one.
(Update: Both U.S. v. Emerson and Silveira v. Lockyer were appealed to the Supreme Court. Emerson’s appeal was denied in 2002. Silveira’s appeal was denied in 2003. The Supreme Court continues to avoid addressing the question of just what the Second Amendment really protects.)